22 Fla. L. Weekly Supp. 455a
Online Reference: FLWSUPP 2204IRACInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter that included all information needed to evaluate claim was not rendered insufficient by failure to attach reverse side of assignment that contained signatures — Substantial compliance, not strict compliance, is proper standard for evaluating sufficiency of demand letter
NEUROLOGY PARTNERS, P.A. D/B/A EMAS SPINE & BRAIN A/A/O LUCIEN IRACE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (“STATE FARM”), Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-002591-XXXX-MA (CC-J). June 19, 2014. Eleni Derke, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Jacksonville, for Plaintiff. James Rinaman, III, James C. Rinaman, III & Associates, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO COMPLIANCEWITH F.S. 627.736 (10) “DEMAND LETTER”
THIS ACTION came before the Court on April 14, 2014 on the Defendant’s Motion for Summary Judgment on whether the Plaintiff properly complied with Florida Statute 627.736 (10) with respect to sending a compliant Pre-suit Demand Letter (“PDL”).1 Upon hearing argument of counsel and being otherwise full advised in the premises, the Court makes the following findings of fact and law:
1. Plaintiff sent a PDL to the Defendant, State Farm, on or about September 26, 2012. Attached to the PDL was the Plaintiff’s assignment of benefits form, which was one page, however, the actual signature of the assignor was on the back of the form. Through inadvertence, the back of the assignment form did not get attached to the PDL. Therefore, the attached assignment of benefits form contained the requisite language to assign the cause of action to the Plaintiff, but the signature on the back of the form was omitted.2 The Defendant does not dispute receiving the Plaintiff’s PDL, but states that the failure to include the back of the assignment invalidates the PDL, as compliance with F.S. 627.736 (10) requires “strict compliance” before suit can be filled.
2. The Plaintiff’s position is that failure to include the back of the assignment is, at worst, a “clerical error,” and should not invalidate an otherwise compliant PDL. Plaintiff’s position is that there is “substantial compliance” with F.S. 627.736(10) and, further, that “substantial compliance” and not “strict compliance” is the standard when reviewing this condition precedent.
3. This Court is guided by Patry v. Capps, 633 So.2d 9 (Fla 1994), in which the Florida Supreme Court discussed the level of compliance necessary for a written notice of intent to initiate litigation. Although Patry involved a medical malpractice case, the theory behind the Court’s decision applies in a PIP context as well. The Court said strict compliance is not necessary when discussing the mode of service of the written notice under section 768.57(2). As long as the legislative purposes of facilitating the early resolution of claims is met, “there is no reason to construe the provision in a manner that results in an unreasonable denial of access to courts” Patry, at 11. In this case, the requisite information in order for State Farm to evaluate the claim was all contained in the PDL sent by the Plaintiff. Further, the PDL response sent by the Defendant failed to raise any issue with the PDL not containing the back of the Plaintiff’s assignment of benefits3.
4. Like the Supreme Court in Patry, this Court finds that the deficiency claimed by the Defendant is merely a technical matter and that the Plaintiff substantially complied with the PDL requirement of F.S. 627.736(10). The Supreme Court emphasizes that, when possible, presuit notice requirements should be construed in a manner that favors access to courts. Patry at 13. Also see, Ultra Care & Diagnostic a/a/o Yania Rodriguez v. MGA Insurance Company, 20 Fla. L. Weekly Supp. 185b (finding “substantial compliance” not “strict compliance” is the proper standard in a PIP context with regard to PDL).
THEREFORE, the Defendant’s Motion for Summary Judgment is DENIED.
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1The Plaintiff also filed a Motion for Summary Judgment as to compliance with F.S. 627.736(10), however, both sides agreed that ruling on the Defendant’s motion would be dispositive of the issue and the Plaintiff withdrew its motion.
2The Plaintiff produced the original assignment of benefits form, front and back, and the Court reviewed same, without objection. The Plaintiff filed the assignment of benefits in support of its position.
3The Court reviewed the Defendant’s PDL response and the Plaintiff filed same with the Court record.
